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Teen killer's attorneys seek parole opportunity two decades after Cherryl Tendeland murder

Cass County State's Attorney Birch Burdick waits for state Supreme Court arguments to start in the Barry Garcia case Thursday, Sept. 14, 2017. John Hageman / Forum News Service 1 / 2
North Dakota Supreme Court Chief Justice Gerald VandeWalle, center, rises after addressing students at Kidder County High School Thursday, Sept. 14, 2017. John Hageman / Forum News Service 2 / 2

BISMARCK—North Dakota Supreme Court justices needled attorneys in a high school gym Thursday, Sept. 14, as they weighed arguments in the case of Barry Garcia, the man convicted of murdering a West Fargo woman when he was 16 years old.

Garcia was sentenced to life in prison without the possibility of parole for killing Cherryl Tendeland with the close-range blast of a shotgun as she sat in a parked car in 1995. His attorneys are seeking to lift his parole restriction, citing a recent U.S. Supreme Court case that made mandatory life-without-parole sentences for juveniles unconstitutional and a new North Dakota law that allows people to seek a reduced sentence for juvenile crimes.

"We are only asking for the possibility of parole," said John Mills, one of Garcia's attorneys. "Mr. Garcia just seeks the opportunity to present evidence that he has been rehabilitated."

Arguments were held at the Kidder County High School in Steele, almost 45 miles east of Bismarck, as part of efforts to bring the court to schools and meet with students. With championship banners draped on the gym walls, students in grades four through 12 looked on as the justices probed arguments from Mills and Cass County State's Attorney Birch Burdick.

Sitting in the bleachers' front row was Tendeland's twin brother Merril Knodle of Fargo, his hands shifting as the attorneys debated the fate of his sister's killer. He said "it's getting easier as time goes along" to attend hearings such as Thursday's.

"I thought it went pretty well," Knodle said.

The Supreme Court hearing came after a Cass County judge rejected Garcia's petition to be resentenced earlier this year. Now 38, Garcia is behind bars at a federal penitentiary in Tucson, Ariz.

'Sea change'

Mills, an attorney from San Francisco, said there has been a "sea change in how courts across the country treat juveniles" at sentencing over the past two decades. He pointed to two recent U.S. Supreme Court cases, Miller v. Alabama and Montgomery v. Louisiana, which both dealt with life-without-parole sentences for juveniles.

In their brief, Garcia's attorneys said the sentencing court "erroneously minimized the mitigating aspects of Mr. Garcia's youth," pointing to the "profound impact" his mother's stabbing death had on his life. But, they said, Garcia has matured in prison.

"Whatever the philosophy of the sentencing judge, Miller and Montgomery require, as a matter of constitutional law, that a sentencing court consider certain categories of information to assess whether a juvenile is irreparably corrupt," Mills said.

But Burdick argued the Miller and Montgomery cases dealt with mandatory sentences, whereas Garcia's sentence was discretionary. He pointed to the sentencing judge's remarks about his "personal philosophy" that "young people are never beyond redemption" but that Garcia gave him "no alternative." The judge also cited Garcia's lengthy and violent criminal history.

"We believe that the sentencing judge considered the kind of arguments that Miller and Montgomery ... have talked about, and those same issues were considered by the sentencing judge at the time," he said.

Justices also focused on a law passed by the North Dakota Legislature this year that allows people who were convicted as an adult for a crime they committed before they were 18 years old to seek a reduced sentence. Defendants can seek a sentence reduction under that law if they have served at least 20 years, the court determines they are not a danger to others and "the interests of justice warrant a sentence reduction."

Garcia's attorneys argued he's "potentially eligible" for relief under that law, which passed the Legislature unanimously and became effective Aug. 1. Burdick disagreed.

"I don't see anything in the statute that says that you can now apply this to a decision that was made 20 years ago," he told the justices.

The justices took the case under advisement.

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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